Fact-checkers are disputing my conclusion that the Obama administration gutted the 1996 welfare-reform law by bureaucratic edict.

To recap: On July 12, the Department of Health and Human Services (HHS) put out a memorandum asserting that it would issue waivers exempting state governments from the work requirements established in the 1996 welfare-reform law. According to the directive, in the future neither states nor recipients of Temporary Assistance for Needy Families (TANF) would be forced to obey the federal “work participation requirements.” The executive fiat flagrantly violated the intent and letter of the reform law.

As the summary of the law prepared by Congress shortly after enactment plainly states: “Waivers granted after the date of enactment may not override provisions of the TANF law that concern mandatory work requirements.”

But when Mitt Romney declared that Obama’s plan would “gut welfare reform,” the mainstream media erupted. The New York Times proclaimed Romney’s statement “blatantly false.” Obama, his media acolytes announced, was merely “tweaking,” not “gutting,” the TANF work requirements. 

A useful place to begin in deciding whether he is “tweaking” or “gutting” them is the 1996 law itself, which replaced the old Aid to Families with Dependent Children (AFDC) program with the TANF program. Section 407 (which Obama claims he can waive lock, stock, and barrel) contains the TANF “work participation requirements.” According to these requirements:
1. Around 30 to 40 percent of the “work eligible” adult TANF caseload in every state are required to engage in work activities.

2. Work activities are defined broadly and include: unsubsidized employment; subsidized employment; on-the-job training; up to twelve months of vocational education; community-service work; job-search and job-readiness training; high-school or GED education for recipients under age 20; and high-school or GED education for those 20 and over if combined with other listed activities.

3. Individuals are required to engage in these activities for 20 hours per week if a parent has a child under age six in the home and 30 hours per week if all children are six or older.

This work-participation framework for TANF is simple and flexible. It allows states a wide range of choices in fulfilling participation standards.

If anything, the TANF work requirements are too lenient. Around half of households receiving TANF payments contain no work-eligible adults and so are fully exempt from federal work requirements. Among work-eligible adults in TANF, half are completely idle each month. Only a quarter of TANF households have any required work activity at all.

Backers of the Obama administration’s new policy argue that states need to be exempted from the federal work-participation requirements so that they can send more recipients to college or to extended classes to learn English. But given the fact that, in the typical state, half of work-eligible adult recipients are doing nothing for their payments, states can massively boost college attendance, enrollment in English-language classes, or any other activity without being impeded by the federal work standards.

Does the Obama administration merely wish to “tweak” the existing work requirements? In fact, HHS’s illegal waiver edict repeatedly asserts that the administration seeks to exempt states from the law’s “work-participation requirements” and to replace those requirements with new standards devised by HHS without any congressional input.

What are those standards? One is called “universal engagement.” Under the section of its executive guidance labeled “HHS Priorities,” the Obama administration explicitly declares that it will give waivers to promote state policies that use a “universal engagement system in lieu of certain participation rate requirements [emphasis added].”

Universal engagement usually means a policy that seeks to have all adult, work-eligible TANF recipients engage in constructive activities for as little as one hour per week. Broad definitions include activities such as visiting a doctor or looking for daycare.

Universal engagement can be a positive policy, if used in conjunction with existing standards. But HHS isn’t proposing that states add universal engagement to existing work-participation rates. (There would be no need to waive existing work requirements in that case.) Instead, HHS explicitly asserts that states should use universal engagement “in lieu of” the work-participation standards in the TANF law.

So it appears the administration intends to do away with standards of the reform law that require 30 to 40 percent of the work-eligible TANF caseload to engage in clearly defined activities for 20 to 30 hours per week. It will replace those standards with a new standard urging that the work-eligible caseload engage in vaguely defined activities for as little as one hour per week.

This sounds a lot like “gutting” to most reasonable people.

Another Obama-administration ploy is to replace the TANF work-participation standards with an alternative performance measure: “employment exits,” a term for the number of TANF recipients who lose eligibility due to increases in earnings. This is a remarkably dubious and counterproductive standard. In fact, under this standard, the pre-reform AFDC program — with its high caseloads — would be considered superior to the post-reform TANF program, since increased caseloads are usually accompanied by a higher number of employment exits.

But, of course, Obama isn’t gutting anything.

— Robert Rector, a leading authority on poverty and the welfare system, is senior research fellow in domestic policy at The Heritage Foundation. He is the author of the new report “Marriage: America’s Greatest Weapon Against Child Poverty.”